The President of India imposed national emergency on the advise of the Union cabinet on the ground of “internal disturbances”. Is it maintainable?

Facts of the Case

The President of India, acting on the advice of the Union Cabinet, proclaimed a national emergency under Article 352 of the Indian Constitution, citing the ground of “internal disturbances”. Questions have arisen regarding the constitutional validity of this proclamation, particularly whether the ground of “internal disturbances” is legally sustainable under the Constitution after amendments.

Issues in the Case

1. Whether the President can validly impose a national emergency on the ground of “internal disturbances”.
2. Whether the constitutional amendments have affected the scope of emergency provisions.
3. Whether the Proclamation of Emergency in this case is maintainable in law.

Legal Principles Covered

A. Constitutional Provisions

1. Article 352 – Proclamation of Emergency
   • Before 44th Amendment (1978): Emergency could be declared on grounds of “war, external aggression, or internal disturbance”.
   • After 44th Amendment:
     • “Internal disturbance” replaced with “armed rebellion” as the ground for internal threats.
     • Purpose: To prevent misuse of emergency powers, as happened during the 1975 Emergency.
   • Article 352 requires:
     • Proclamation by the President.
     • Based on written advice of the Union Cabinet.
     • Approval by Parliament within one month.
2. Articles 356 and 360
   • Provide additional emergency powers (state emergency, financial emergency).
   • Not directly relevant but help understand emergency framework.

B. Judicial Principles

1. R. C. Cooper v. Union of India (1970) 1 SCC 248
   • Supreme Court stressed that emergency powers are subject to judicial review to prevent arbitrary use.
2. Minerva Mills v. Union of India (1980) 3 SCC 625
   • Emphasized basic structure and limited powers of Parliament/President even in emergency.
3. 44th Amendment of the Constitution, 1978
   • Replaced “internal disturbance” with “armed rebellion” to make the ground more specific.
   • Proclamation on the old ground “internal disturbances” is no longer maintainable.

Possible Judgement / Legal Advice

1. Ground of “Internal Disturbances” Not Maintainable
   • After the 44th Amendment, “internal disturbances” is no longer a valid ground.
   • Any emergency proclaimed solely on this basis would be unconstitutional.
2. Judicial Review
   • Courts can examine:
     • Whether the President acted on proper advice.
     • Whether the proclamation is consistent with the 44th Amendment.
   • If not, the Proclamation can be struck down.
3. Remedies / Consequences
   • Citizens can challenge the proclamation in the Supreme Court under Article 32.
   • Any laws or actions taken during the invalid emergency may be subject to review.

Advisory Conclusion:
The proclamation of national emergency by the President on the ground of “internal disturbances” is not maintainable after the 44th Amendment. The valid ground now is “armed rebellion”, and any emergency declared on outdated grounds would be constitutionally invalid and open to judicial challenge.

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